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Supreme Court Protects ‘Net Speech

The Supreme Court of Canada recently released its decision in Crooks v Newton, 2011 SCC 47. The majority’s decision (2 judges substantially agreeing and only 1 dissenting) protects free speech on the internet by dismissing the appeal of a plaintiff arguing in defamation that publishing a hyperlink to a third party website with allegedly defamatory content constituted ‘publishing’ the impugned content for the purposes of establishing that required element of defamation.

The Majority’s clear and concise statement upheld the lower court decisions, and specifically that hyperlinks are like footnotes, references to third party information only and not the information itself, and although more easily navigable than traditional references required a reader to choose to act to pursue that information.

The Court was clear that ‘net freedom is a social good that should be protected by the law:

Traditionally, the form the defendant’s act takes and the manner in which it assists in causing the defamatory content to reach the third party are irrelevant.  Applying this traditional rule to hyperlinks, however, would have the effect of creating a presumption of liability for all hyperlinkers.  This would seriously restrict the flow of information on the Internet and, as a result, freedom of expression.

[…] A hyperlink, by itself, should never be seen as “publication” of the content to which it refers. […] Here, nothing on N’s page is itself alleged to be defamatory.  Since the use of a hyperlink cannot, by itself, amount to publication even if the hyperlink is followed and the defamatory content is accessed, N has not published the defamatory content and C’s action cannot succeed.

The successful intervention of the Canadian Civil Liberties Association, in addition to numerous provincial Associations, is noteworthy.

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